Henry v. St. John's Hospital

563 N.E.2d 410, 138 Ill. 2d 533

• Court: Illinois Supreme Court
• Decided: November 30, 1990
• Docket: 68659
• Status: Published

Opinions

JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff, Erica Henry, was severely injured during her birth as a result of the negligent administration of the drug Marcaine, an anesthetic, to her mother. Plaintiff sued defendants St. John’s Hospital and Dr. Shari Fitzgerald (defendants) in a medical malpractice action. Plaintiff also sued Sterling Drug, Inc., and Breon Laboratories, Inc. (Sterling-Breon), the manufacturers of the drug, in the same action for failure to properly warn about the drug and failure to contraindicate it for the usage which allegedly caused plaintiff’s injuries. During the trial, Sterling-Breon filed a contribution claim against defendants, alleging that Dr. Fitzgerald had negligently administered the drug.

The circuit court of Sangamon County found as a matter of law that defendants had violated the standard of care and directed a verdict as to that issue. On the issue of causation, the jury returned a verdict against defendants and Sterling-Breon, and assessed $10 million in compensatory damages. The jury determined that defendants’ pro rata share of these damages was 7%, and that Sterling-Breon was liable for 93% of the compensatory damages. (Henry v. St. John’s Hospital (1987), 159 Ill. App. 3d 725, 728.) In a remittitur, the trial court reduced the medical-expenses portion of the award for compensatory damages and entered judgment against defendants and Sterling-Breon for $8,511,759. In addition, the jury returned a verdict against SterlingBreon for $7 million in punitive damages. 180 Ill. App. 3d 558, 561.

Plaintiff’s mother, Jane Henry, brought a separate action on her own behalf against defendants and Sterling-Breon in which she alleged that their actions constituted an intentional infliction of emotional distress. After the mother’s action was dismissed on the pleadings, she appealed. Defendants and Sterling-Breon appealed plaintiff’s jury verdict. 180 Ill. App. 3d at 562.

While both appeals were pending, plaintiff filed a petition for approval of minor plaintiff’s settlement agreement with Sterling-Breon and for a good-faith finding pursuant to the Contribution Act (Ill. Rev. Stat. 1987, eh. 70, pars. 301 through 305). The details of the settlement are included in the appellate court opinion and need not be repeated here. (See 180 Ill. App. 3d at 562-63.) Nevertheless, this agreement between plaintiff and Sterling-Breon provided a monetary settlement of both plaintiff’s and her mother’s claims against SterlingBreon, but for a total current cash value which was much less than the amount Sterling-Breon was liable to pay plaintiff on the jury’s verdict. The agreement specifically stated that plaintiff and her parents intended to pursue their claims against defendants. (180 Ill. App. 3d at 562.) The agreement also provided for the indemnification of Sterling-Breon for any claims brought by defendants against Sterling-Breon for contribution. 180 Ill. App. 3d at 563.

The trial court found that the settlement was in good faith, dismissed Sterling-Breon from plaintiff’s action, and vacated the judgment against Sterling-Breon. (180 Ill. App. 3d at 563.) The appellate court then affirmed the judgment against defendants. Henry, 159 Ill. App. 3d at 735; 180 Ill. App. 3d at 563-64.

Plaintiff then initiated post-judgment proceedings against defendants. Defendants responded by tendering a check to plaintiff for the 7% of the judgment they were liable for, plus interest, and petitioning the trial court for entry of judgment on the jury verdict. The trial court denied defendants’ motion, holding that defendants were jointly and severally liable for the entire jury verdict sum. The court then held that after the settlement, the amount of recovery had been reduced by $3.35 million, making defendants liable for the remainder of the verdict — $5.51 million in compensatory damages, $1.53 million in interest accrued up to that date, and any interest after that, accruing at a rate of $1,359 per day. 180 Ill. App. 3d at 564.

Defendants appealed this judgment. The appellate court, in reversing the trial court’s ruling, looked to the language of the Contribution Act, which provides that where two or more persons are subject to tort liability to the same person for the same injury, there is a right of contribution among them. (180 Ill. App. 3d at 564; Ill. Rev. Stat. 1987, ch. 70, par. 302(a); see Rakowski v. Lucente (1984), 104 Ill. 2d 317, 322; see generally M. Polelle & B. Ottley, Illinois Tort Law 671-73 (1985) (discussing the Contribution Act).) This right of contribution exists only in favor of tortfeasors who have paid more than their pro rata share of the common liability, and recovery is limited to the amount they have paid in excess of their pro rata share. Ill. Rev. Stat. 1987, ch. 70, par. 302(b); see Houser v. Witt (1982), 111 Ill. App. 3d 123, 125.

The appellate court focused on section 2(c) of the Contribution Act, which provides that a settlement agreement, made in good faith with one or more persons liable in tort arising out of the same injury, will not discharge any of the remaining joint tortfeasors from liability unless the agreement expressly provides for such a discharge. It further states that the settlement will reduce the amount the other tortfeasors owe by the amount stated in the settlement, or the contribution actually paid, whichever is greater. (180 Ill. App. 3d at 564-65, citing Ill. Rev. Stat. 1987, ch. 70, par. 302(c).) The appellate court also noted that the Contribution Act expressly provides that a tortfeasor who settles is discharged from all liability for contribution and is not entitled to recover from any tortfeasor who is still liable (180 Ill. App. 3d at 565, citing Ill. Rev. Stat. 1987, ch. 70, pars. 302(d), (e)), while it maintained that a plaintiff’s ability to recover the full amount of the judgment from any one or more defendants subject to liability in tort for the same injury to the same person is not affected by the Contribution Act. 180 Ill. App. 3d at 565, citing Ill. Rev. Stat. 1987, ch. 70, par. 304.

In its analysis, the appellate court first stated that the function of a court in construing statutes is to ascertain and give effect to the statute’s legislative intent. (180 Ill. App. 3d at 565, citing Dornfeld v. Julian (1984), 104 Ill. 2d 261, 266.) The court then analyzed the legal precursors and legislative history of the Contribution Act, concluding that one of the main purposes of the Act was to spread the liability among joint tortfeasors in proportion to the degree each was responsible for the injured party’s damages. (180 Ill. App. 3d at 565-67.) Using this as its foundation, the court interpreted the Contribution Act as providing that an injured party who has reduced liability to judgment by verdict in an amount certain and then settles with a tortfeasor who is financially able to satisfy the entire judgment, has to waive the right to enforce any portion of the judgment not corresponding to a nonsettlor’s percentage of negligence against any nonsettling tortfeasors, despite the Contribution Act’s maintaining an injured party’s right to hold all defendants jointly and severally liable. 180 Ill. App. 3d at 569-70.

The appellate court based much of its reasoning on Bartels v. City of Williston (N.D. 1979), 276 N.W.2d 113. (180 Ill. App. 3d at 568-69 (the court also relied on a similar case, Prudential Life Insurance Co. v. Moody (Ky. 1985), 696 S.W.2d 503).) The Bartels court held that joint and several liability exists to benefit the injured party and can be waived by a settlement with a single joint tortfeasor, which serves to limit the injured party’s recovery from any remaining tortfeasors to the percentage of negligence attributed to each. (180 Ill. App. 3d at 569, citing Bartels, 276 N.W.2d at 122.) The appellate court found a direct correlation between the statutory language cited in Bartels and the Contribution Act, holding that plaintiff waived joint and several liability and that recovery from defendants was limited to the 7% amount attributed to them by the jury. 180 Ill. App. 3d at 569-70.

We disagree with the appellate court’s analysis in the case at bar and therefore reverse. Despite the many issues plaintiff raises on appeal, we need only address the appellate court’s incorrect interpretation of the Contribution Act. We hold that an injured party does not waive the right to enforce a judgment against a jointly and severally liable tortfeasor by settling with another joint tortfeasor.

We find that the appellate court has misapplied the basic principles of statutory interpretation in the case at bar. We agree that this court, when it interprets statutes, has a duty to determine the intent of the legislature when enacting the statute in question and to enforce that intent. (Faheem-El v. Klincar (1988), 123 Ill. 2d 291, 297-98.) However, the rules of statutory construction require us to first look to the statutory language itself as the best indication of the intent of the drafters (County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 151; People v. Robinson (1982), 89 Ill. 2d 469, 475), and where the intent can be ascertained from the statute’s language, it will be given effect without resorting to other aids for construction (Robinson, 89 Ill. 2d at 475). When interpreting a statute, we must give the language of the statute its plain and ordinary meaning. Maloney v. Bower (1986), 113 Ill. 2d 473, 479.

The appellate court did attempt to give the language of section 3 of the Contribution Act its plain and ordinary meaning when it endeavored to define the term “amount.” (180 Ill. App. 3d at 567.) The pertinent part of section 3 states:

“Amount of Contribution. The pro rata share of each tortfeasor shall be determined in accordance with his relative culpability. However, no person shall be required to contribute to one seeking contribution an amount greater than his pro rata share unless the obligation of one or more of the joint tortfeasors is uncollectable. In that event, the remaining tortfeasors shall share the unpaid portions of the uncollectable obligation in accordance with their pro rata liability.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 70, par. 303.

While the appellate court’s analysis of the legislative history surrounding the Contribution Act was aU correct, it is irrelevant. (See Village of Carpentersville v. Pollution Control Board (1990), 135 Ill. 2d 463, 469-70.) The plain language of section 3 states that no party is required to contribute more than that party’s pro rata share to one seeking contribution. The right of contribution contemplated by this statute exists among joint tortfeasors, not between tortfeasors and the parties they injure. (See Ill. Rev. Stat. 1987, ch. 70, pars. 302(a), (b).) Section 4 of the Contribution Act expressly states that a plaintiff’s right to recover the full amount of a judgment from any single defendant is not affected by the provisions of the Act. (Ill. Rev. Stat. 1987, ch. 70, par. 304.) Sections 2(c) and 2(d) explain the only way a defendant can escape joint and several liability under the Act — a release, or covenant not to sue or not to enforce judgment of that tortfeasor’s liability, which a plaintiff gives in good faith. However, section 2(c) further explains that the liability of the remaining tortfeasors is reduced only to the extent of any amount stated in the release or covenant, or in the amount paid for it, whichever is greater. Ill. Rev. Stat. 1987, ch. 70, pars. 302(c), (d).

Therefore, when we read these statutory sections together (see Castaneda v. Human Rights Comm’n (1989), 132 Ill. 2d 304, 318 (legislative intent must be determined from entire statute, not just an isolated passage)), we find that the plain meaning of the statutory language indicates that the Contribution Act does not affect a plaintiffs common law right to collect the full amount of a judgment from any individual tortfeasor who is jointly and severally liable for that plaintiffs injuries. (But see Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1117 (altering the joint and several liability of tortfeasors who are less than 25% responsible for the injury; but statute was not in effect when injury in case at bar occurred).) If a plaintiff elects to settle with one party, the remaining tortfeasors are still jointly and severally liable for the full amount of the judgment, less the amount of the settlement. Thus, the trial court was correct in holding defendants liable for the full amount of the judgment minus the value of the Sterling-Breon settlement agreement.

We also disagree with the appellate court’s characterization of the settlement agreement as acting as a waiver of plaintiff’s right to the 93% of the judgment for which Sterling-Breon was liable. As we have already stated, the Contribution Act creates a right of contribution among joint tortfeasors. The language of the Act expressly excludes any other party. (Ill. Rev. Stat. 1987, ch. 70, pars. 302(a), (b), 303 (“where 2 or more persons are subject to liability in tort arising out of the same injury *** there is a right of contribution among them ***. The right of contribution exists only in favor of a tortfeasor ***. *** [N]o person shall be required to contribute to one seeking contribution an amount greater than his pro rata share” (emphasis added)).) Also, section 4 of the Act explicitly states that a plaintiff’s right to fully recover from any one or more joint tortfeasors is not affected by the provisions of the Act. (Ill. Rev. Stat. 1987, ch. 70, par. 304.) We therefore find nothing in the language of the statute to support the appellate court’s finding that a plaintiff’s settlement agreement with one joint tortfeasor acts as a waiver of the right to jointly and severally enforce a judgment under the Contribution Act.

We also find that the appellate court’s reliance on the Bartels and Moody cases was misplaced. In Bartels, the court interpreted a section of North Dakota’s contribution statute, which is similar to section 2(c) of our Contribution Act, as having been impliedly repealed by a subsequent comparative negligence statute which required the jury to render a separate verdict as to each defendant and apportion the damages accordingly. The Bartels court further stated that the provision in the comparative negligence statute, which provided that joint tortfeasors shall remain jointly and severally liable, was included for the benefit of the injured party and was waivable. Bartels, 276 N.W.2d at 121-22.

Bartels, however, is distinguishable from the case at bar. Illinois’ comparative negligence statutes (Ill. Rev. Stat. 1987, ch. 110, pars. 2-1116, 2-1117, 2-1118) were not in effect when plaintiff’s injuries occurred. Therefore, no subsequent legislative action existed in this State to help us interpret the Contribution Act for the purposes of the case at bar. Also, the statutory language which the appellate court quoted from Bartels was from the North Dakota comparative negligence statute, not that State’s contribution act. (See 180 Ill. App. 3d at 569; Bartels, 276 N.W.2d at 121.) It was therefore inappropriate for the appellate court to use statutory language which nullified a statute similar to our Contribution Act in such a way as to contradict the plain meaning of our statute.

In a similar fashion, the Moody case concerned a statute which addressed the issue of comparative negligence, rather than contribution. Therefore, Moody is also distinguishable from the case at bar. Moody, 696 S.W.2d at 504.

Because the Contribution Act focuses on the rights of joint tortfeasors, the appellate court should have focused the waiver issue on the actions of defendants, not plaintiff. Defendants appear to have anticipated this, because they claim that any attempt on their part to pursue a contribution action against Sterling-Breon became futile when plaintiff and Sterling-Breon entered into the settlement agreement, because section 2(d) of the Contribution Act states, “The tortfeasor who settles with a claimant *** is discharged from all liability for any contribution to any other tortfeasor.” (Ill. Rev. Stat. 1987, ch. 70, par. 302(d).) Defendants argue that allowing plaintiff to effectively choose the percentage of liability she will enforce in judgment makes post-judgment settlements impossible in cases with joint tortfeasors. They further claim that plaintiff’s interpretation of the Contribution Act actually serves to destroy defendants’ right to pay only their pro rata share of the judgment, because their ability to seek contribution from SterlingBreon was nullified by the settlement and was completely out of their control. Thus, defendants impliedly argue that they cannot be held to have waived the right to pay only their pro rata share.

Defendants, however, mischaracterize their rights under the Contribution Act. Defendants do not have a right to have their liability limited to their pro rata share of the judgment. Rather, section 2(b) of the Act gives them a right of contribution if they pay more than their pro rata share of the common liability. Section 2(b) also states that no tortfeasor is liable to make contribution for more than his pro rata share. (Ill. Rev. Stat. 1987, ch. 70, par. 302(b).) Thus, defendants have only a right to recoup from the other joint tortfeasors any amount they pay to plaintiff in excess of their own pro rata share.

However, defendants have waived any right of contribution. When there is a pending action in a personal injury case involving joint tortfeasors, the contribution claim should be asserted by counterclaim or by third-party claim in that action, or else the contribution claim is barred. (Laue v. Leifheit (1984), 105 Ill. 2d 191, 19597.) The Laue court designed this rule to prevent separate juries from deciding the separate issues of liability to the plaintiff and the percentages of liability among the defendants — thus avoiding a multiplicity of lawsuits and the possibility of inconsistent verdicts. Even though the question of defendants’ right to contribution is being raised on appeal, rather than in a separate trial proceeding, we find the waiver principle equally applicable.

The Laue court’s construction of section 5 of the Contribution Act leads us to conclude that anytime a joint tortfeasor fails to bring his contribution claim in the original action, any claim to contribution is thereafter a nullity. Section 5 states:

“Enforcement. A cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action.” (Ill. Rev. Stat. 1987, ch. 70, par. 305.)

The Laue court interpreted the language of section 5 which provides that a contribution claim may be asserted by a “separate action before or after payment” as covering situations where the injured party has not initiated a pending lawsuit. However, where there is a pending action, the contribution claim must be asserted in that action. (Laue, 105 Ill. 2d at 196.) Therefore, the plain meaning of section 5’s language mandates that, unless a joint tortfeasor brings a counterclaim or third-party claim for contribution in the original action, any claim for relief under the Contribution Act is thereafter waived. Though the case at bar is factually distinguishable from Laue, we find no reason to depart from that decision’s express holding.

Also, we must note that the appellate court has already settled this issue. The first time this cause came before the appellate court, that court held that the trial court was correct in not allowing defendants to file a contribution counterclaim. The trial court determined that defendants had requested leave to file the counterclaim, which amounted to an amendment of the pleadings, at such a late stage of the trial that to allow defendants’ request would have prejudiced the other parties. It further noted that the counterclaim also amounted to defendants’ raising a new issue after all parties had rested their cases. The appellate court expressly held that the counterclaim had not been raised in a timely fashion. (Henry, 159 Ill. App. 3d at 734.) This serves only to support our holding that by failing to preserve their contribution rights in the original action, defendants have effectively waived those rights.

Defendants further argue, against the requirement that they must file a contribution claim in the original action in order to preserve their right to pay no more than their pro rata share of the judgment, that the trial court’s finding that the settlement agreement was in good faith was erroneous. Specifically, defendants claim that this ruling effectively bars them from seeking contribution, and only serves to allow plaintiff and SterlingBreon to “gang up on” defendants, who were not parties to the settlement agreement.

Section 2(d) of the Contribution Act indeed does provide that a joint tortfeasor who settles will escape liability for contribution. (Ill. Rev. Stat. 1987, ch. 70, par. 302(d).) We need not decide, however, whether a settlement between a joint tortfeasor and a plaintiff, entered into after a jury has determined the amount of each joint tortfeasor’s pro rata share of the judgment amount, which settlement results in one joint tortfeasor’s paying substantially less than its pro rata share while cutting off that tortfeasor’s contribution liability to the remaining joint tortfeasors, is a good-faith settlement under the Contribution Act. This is because a section 2(d) discharge of contribution liability cannot occur where the settling joint tortfeasor not only has no contribution liability before he entered into the settlement agreement but, because of the nonsettling tortfeasors’ failure to preserve their contribution claim, can have no such liability thereafter.

As we have already explained, defendants in the case at bar failed to preserve their right to contribution from Sterling-Breon, because they neglected to raise the contribution claim in a timely fashion during the original proceeding. The doctrine of contribution among joint tortfeasors is equitable in origin (see Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 12-13; 18 Am. Jur. 2d Contribution §§3 through 5 (1985)), and “equity aids the vigilant and not those who sleep on their rights” (Bell v. Louisville & Nashville R. R. Co. (1985), 106 Ill. 2d 135, 146, citing Flannery v. Flannery (1943), 320 Ill. App. 421, 432). Defendants had ample opportunity to alert the trial court to their interests by filing a contribution claim at some point during the original trial. This means that, at the time the trial judge approved the settlement agreement, SterlingBreon could not possibly have been liable to defendants for contribution; the right had been waived. Technically, Sterling-Breon had no contribution liability to be discharged at the time the “good-faith” determination was made. The trial court’s finding that the settlement agreement was in good faith, therefore, could not possibly be a bar to defendants’ contribution claim against Sterling-Breon. Cf. Ill. Rev. Stat. 1987, ch. 110, par. 2— 1117 (tortfeasors who are less than 25% responsible are only severally liable for damages arising from negligently inflicted bodily injury; statute not in effect at time of plaintiff’s injury).

Defendants also characterize the trial court’s holding them liable for the entire remainder of the judgment sum, rather than for 7% of the damages as the jury determined, as an improper post-judgment reallocation of the jury verdict. Defendants rely on this court’s decision in Kerns v. Engelke (1979), 76 Ill. 2d 154, 167-70. In Kerns, one of three joint tortfeasors entered into a post-judgment loan receipt agreement with the plaintiff. This agreement provided for the tortfeasor to lend money to the plaintiff for the purpose of financing the plaintiff’s appeal. This loan was to be paid back from any money recovered from the remaining joint tortfeasors. The Kerns court held this agreement void as an improper assignment of a personal injury judgment to a party who is liable for the injury. The Kerns court stated that this type of loan receipt agreement was proper only if made before the liability of the multiple tortfeasors is adjudicated. Defendants see a direct correlation between the type of post-judgment manipulation in Kerns and the post-judgment agreement entered into here.

We disagree. The type of loan agreement that existed in Kerns was a remnant left from the time when contribution among joint tortfeasors was prohibited at common law. In effect, these loan agreements allowed plaintiffs to apportion liability among the joint tortfeasors, despite the ban on contribution. However, at that time this court would only uphold as valid those loan receipt agreements which were entered into before liability was adjudicated. This was done to allow the joint tortfeasors to use the agreement for impeachment purposes at trial. (See Kerns, 76 Ill. 2d at 168-70; see also Skinner, 70 Ill. 2d at 12.) The Kerns court also held that a post-judgment loan receipt agreement allows a joint tortfeasor to avoid the bar to contribution or indemnification when not entitled to it. Kerns, 76 Ill. 2d at 171.

Thus, Kerns is wholly inapplicable to the case at bar. The rights which the Kerns court sought to protect are no longer an issue because our decision in Skinner, codified by the Contribution Act, now allows for a right of contribution among joint tortfeasors. (See M. Polelle & B. Ottley, Illinois Tort Law 671-73 (1985).) That is, provided joint tortfeasors employ the machinery of the Contribution Act, they can prevent the type of inequities which the Kerns court decried. As we have explained already, however, defendants have failed to follow the procedures of the Act. Therefore, defendants’ use of Kerns to argue issues related to contribution is akin to the use of an overturned case to support their position.

Accordingly, we hold that plaintiff did not waive her right to enforce judgment against defendants by settling with another joint tortfeasor, and therefore reverse the judgment of the appellate court. We affirm the judgment of the circuit court of Sangamon County and hold that defendants, by failing to file a claim for contribution during the trial, waived their right to contribution from the other joint tortfeasors, and, under the express terms of the Contribution Act, are jointly and severally liable for the entire amount of the judgment, less the amount which Sterling-Breon paid plaintiff in settlement.

Appellate court reversed; circuit court affirmed.